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Death Penalty – is it in consonance with Article 21?

By- Nagakishan V J*


To understand the aspects of this article, one has to look into what Article 21[i], of the Constitution, in actuality deals with. The main aspects which have to be focused on here, in this particular article envisaged in the country’s sacred text “The Constitution” is the aspect of “procedure established by law[ii]. This is one of the key phrases which, without the existence of which, the situation would have been chaotic and this is one such phrase which makes or breaks the provision. The main intention of the drafting committee behind the insertion of this idea into the provisions of the Constitution was, to ensure that, the concept of the reasonable procedure[iii] which has been laid down by the procedural laws have been followed to the fullest because, without its fulfilment, the use of substantive law would just be redundant.

Another most important aspect which has to be taken into consideration for the terms and the subject being discussed in this article is the perspective of the word “LIFE” which is being used in the provision of Article 21. The American way of interpretation of the word 'life', is now being used by the courts, as most of the ideas and views which were used for the development of Part III was borrowed from the U. S. Constitution. And as rightly pointed out by Dr. B. R. Ambedkar, the Indian Constitution, is a ‘bag of borrowings’ and rightly so is the concept of Fundamental Rights. Along with the fundamental rights, came the protection of the very basics, which are ensuring the protection of equality and dignity of individuals. And so, the meaning of life was taken from the case of Munn v. Illinois[iv], where the meaning was interpreted in the way where, life encapsulates the entirety of life, which comes with the other perks and benefits and not just the merely physical and animal existence of man, and anything and everything which would be a part of enjoying the life, would also fall into the same purview.

This being the perspective of the courts at the present time, coming to the question at hand, “Does death penalty being imposed violate Article 21?” and that is what, the search of this is the primary focus of the article.


There are three major aspects of focus –

1. Rarest of the rare cases

2. The 35th Law Commission Report

3. The coherence of IPC and the Constitution.

Rarest of the rare cases –

This concept first originated from the case of Bachan Singh v. State of Punjab and the Court held that death penalty would only be imposed as a punishment, and also held that the imposition of capital punishment is the alternative punishment for murder and does not, in any circumstances violate any provisions of the laws which exist. The Doctrine of Rarest of the Rare cases came from the above-mentioned case, as it laid down the landmark provision in this matter and regard and so, because of which it is crucial for one to understand the intricacies of this matter. The Doctrine of Rarest of Rare cases, is an important aspect, as it looks into nature and the acts which were committed in the particular case in question and only after establishing that, the nature of the crime is of a manner, where it could not have happened anywhere else and would be the only kind of case which would baffle the society with its gore. And in the case of Macchi Singh v. State of Punjab, the Court finally laid down provisions which would determine the category of the crime,

  1. Whether there is something uncommon about the crime which renders a life imprisonment sentence inadequate and calls for a death sentence?

  2. Whether “the circumstances of the crime are such that there is no alternative but to impose the death sentence even after according maximum weightage to the mitigating circumstances which speak in favor of the offender?”

These are the two questions which were laid down. And taking a clear look at it, one can understand the rationale behind the courts, if they would assert the punishment of death.

The 35th Law Commission Report –

In the case of Jagmohan Singh v. State of Uttar Pradesh the courts looked into and relied its judgement on the 35th Law Commission Report, which highlighted the aspect of death penalty not being violative of the Constitution but, one should look at capital punishment, as a prohibition of freedom unless doing so, is an act which is reasonably justified and is in the best interest of the public and mentioned that “India cannot risk the experiment of the abolition of capital punishment”.

The coherence of IPC and the Constitution –

This is one of the most significant debates which would probably exist if these are questioned in recent times. But when they were of the question in the very innocent stages of the judiciary and the governance of the country, all of these perspectives would not have evolved very strong to face strong evaluation and analysis from the citizens. The major conflict comes up in the matters which deal with the penalty for murder in the IPC which is Sec 302[v] and Article 19(1)[vi] which grants freedom. In the case of Rajendra Prasad v. State of Uttar Pradesh and also in the case of Jagmohan Prasad the Court looked into these two matters and held that, only if there would be a direct link to Article 19, would there be a consequence for the imposition of the death penalty, but, when there is no such direct relation and death penalty being an alternative for Sec 302 of IPC, then because of no direct link to the same, death penalty could be validated. This is a way of using the law, in a twisted way. By indirect link, it is meant that, as the offender did not have any right to take away the life of others.

The other perspective being, “it would be very violative, absurd, arbitrary and freakish”, which are the words of Justice Bhagwati, who opined the dissenting judgement was crucial and vital, as he mentions that death penalty as a penalty would be disproportionate to the crime committed and is violative of Article 14 and 21.


Replying upon the most famous judgement which was given by Justice H R Khanna in the ADM Jabalpur v. Shivkanth Shukla case, he attributed the novelty and the necessity of the Right to Life and Liberty to be upheld even during times of unanticipated turmoil. Basing the arguments on that dissenting opinion by the esteemed judicial member, the author would strongly stand by with the stance which was held by Justice Bhagawati in the above-mentioned paragraph which discussed the duality between the IPC and the Constitution. Article 21 has its roots mainly involved in the restrictions which it imposes because without the presence of these restrictions it would be a provision which has scope for abuse and unnecessary use. The procedure established by law must always be fair, just and reasonable and the law which imposes the same must be a valid law. The Maneka Gandhi v. UOI is one of the most important cases which would be the underlying principles for any and every act which would contain the influence of the judiciary. The use of the Golden Triangle, which are Articles 14, 19 and 21, to ensure each and every action would be a calculated step which has been plotted with utmost precision, care and responsibility.

The author is not suggesting the fact that the courts implement these ideals or to work with caution. What the author suggests here is to the readers, the importance of the golden triangle’s and how its influence must be clearly visible in each and every case which is being dealt with in the esteemed Court halls of the country.

Capital punishment in its essence is an act of retribution. Looking back at the country’s history, the first step towards civilization in this sub-continent was the Harappan Civilization, during which the structure and the foundation for the country were laid down. The Harappan’s during their era saw widespread peace and prosperity, happiness and wealth and during their time crime rates were low, no policing existed and the only weapons which they had were to defend themselves rather than to attack other civilizations[vii]. That is an attainable goal, people did it before and it can be done now as well and that should be the goal everyone as citizens should strive for, where everyone would exist in the utopian district. But the only aspect which is missing between the Harappan’s and the present citizens of the country is a sense of equality amongst one another. The author, before concluding this article would like to leave the readers with a question. “What is it, that makes humans, humane? What is it, that makes humans, civilized? is it because people have moved to self-preservation, rather than preservation? Or is it because people have thought more about one, rather than everyone? Or have people just given up about the ability of people to change” the answers would tell us why capital punishment still exists and why it shouldn’t exist.


* The author is a student at Christ (Deemed to be University), Bangalore.

[i] Article 21 – No person shall be deprived of his life or personal liberty except according to the procedure established by law. [ii] Vol 1, Professor M P Jain, Indian Constitution Law, Pg 1179, Sixth Edition, Justice Ruma Pal and Samaraditya Pal, 2010. [iii] Id. [iv] 94 U.S. 113 (1877) [v] Section 302 – Punishment for Murder – Whoever commits murder shall be punished with death or [imprisonment for life] and shall be liable to fine. [vi] Article 19(1) – All citizens of India shall have the right – (a) to freedom of speech and expression (b) to assemble peacefully (c) to form associations or unions (d) to move freely throughout the territory of India (e) to reside and settle in any part of the territory of India. [vii] Nagakishan V J, Law and Justice – Indivisible Characters of Human History, International Journal of Advanced Legal Research, Pg 4, Vol 1 Issue 2, Dec 2020.



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